“You don’t need a peg leg or an eye patch,” begins Judge Alex Kozinski, launching into a scathing ruling against Sea Shepherd Conservation Society, which the judge calls a “pirate” organization.
Kozinski, chief judge for the Ninth Circuit Court of Appeals, concluded in a ruling today that U.S. District Judge Richard Jones had made “numerous, serious and obvious errors” when he declined to issue an injunction against Sea Shepherd for its high-seas battle against Japanese whalers.
The three-judge panel ordered that the case be removed from Jones’ jurisdiction and turned over to another Seattle district judge drawn at random.
Meanwhile, the Institute of Cetacean Research — the Japanese whaling organization — continues its effort to get a contempt-of-court citation issued against Sea Shepherd, which has increased its efforts to disrupt Japanese whaling in the Southern Ocean.
Sea Shepherd remains under a U.S. Court of Appeals injunction, which requires that the organization’s ships operate safely and stay 500 yards away from the Japanese vessels.
I’ll provide an update on Sea Shepherd’s activities in a separate blog post, but let me first tell you more about Kozinski’s ruling (PDF 238 kb), which finds nothing commendable about any of Sea Shepherd’s actions.
For its part, Sea Shepherd says its anti-whaling activities are no longer subject to U.S. court rulings, since its operations in the Southern Ocean have been moved entirely under the banner of Sea Shepherd Australia. Check out the commentary by Scott West of Sea Shepherd United States:
“We cannot provide funds for the campaign, solicit donations for it, support it on our website, or provide any kind of direct support. Some key folks on the ships had to resign from SSCS US. What I can still offer however is my moral support. I can still cheer on my team. I can root for the heroes on the Sea Shepherd Australia ships who are risking life and limb to save whales.”
Paul Watson, the longtime leader of Sea Shepherd who is a U.S. citizen, says he has reduced his role to one of “observer” to comply with the court order.
Here are quotes showing the reasoning in Judge Kozinski’s opinion, signed also by Circuit Judges Wallace Tashima and Randy Smith:
“You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.”
The appeals court found that Sea Shepherd was clearly in violation of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, abbreviated to “SUA Convention.” (“Cetacean” in the ruling refers to the Institute of Cetacean Research, which purports to kill whales for scientific discoveries.)
“The SUA Convention prohibits acts that endanger, or attempt to endanger, the safe navigation of a ship. Cetacean presented uncontradicted evidence that Sea Shepherd’s tactics could seriously impair its ability to navigate. The district court nonetheless concluded that, since Sea Shepherd has not yet disabled any of Cetacean’s ships, it’s unlikely it would succeed in the future.
“This was clear error. The district court overlooked the actual language of the Convention, which prohibits ‘endanger[ing]’ safe navigation. This requires only that Sea Shepherd create dangerous conditions, regardless of whether the harmful consequences ever come about. As to whether Sea Shepherd’s tactics actually are dangerous, the record discloses that it has rammed and sunk several other whaling vessels in the past…
“Sea Shepherd’s repeated claims that its efforts are merely ‘symbolic’ and ‘employed so as to ensure maximum safety’ are disingenuous. How else can it explain that it has switched to metal-reinforced prop-fouling ropes? Reinforced ropes carry the same symbolic meaning as normal ropes, but they are far more destructive. Nor does symbolism require Sea Shepherd to bring its ships dangerously close to Cetacean’s….”
The court also found the lower court judge in error for giving deference to an Australian court, which ruled that the Institute of Cetacean Research is in violation of the law against killing whales in protected waters.
“Whatever the status of Cetacean’s whaling under Australian law, it gives Sea Shepherd no license to engage in piracy. It is for Australia, not Sea Shepherd, to police Australia’s court orders. Additionally, comity applies only if the foreign court has competent jurisdiction. But the United States doesn’t recognize Australia’s claims of sovereignty over Antarctic waters….
“Because neither the United States nor Japan recognizes Australia’s jurisdiction over any portion of the Southern Ocean, Cetacean owes no respect to the Australian order. Cetacean has done nothing to acquire the rights to safe navigation and protection from pirate attacks; they flow automatically from customary international law and treaties. Nor is there anything remotely inequitable in seeking to navigate the sea lanes without interference from pirates….
“The district judge’s numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order….”